A new Federal Trade Commission advisory opinion may offer the best guide so far to independent physicians who want to integrate clinically and negotiate collectively with payers without running afoul of antitrust law, an area in which the commission has rejected providers pleas for explicit guidance.
The FTC previously has resisted providers pleas for clear standards so that the government wont view doctors negotiations with payers as illegal.
The new 37-page opinion from the FTC staff concludes that a program proposed by a Maryland physician-hospital organization has the potential to achieve higher quality and more cost-effective care.
Moreover, it says that joint contracting is both necessary and subordinate to the broader effort, the governments key antitrust test for whether the benefits justify what would otherwise be illegal price-fixing.
TriState Health Partners involves 212 physicians in what Executive Director Allan Field calls the skinny parts of Maryland and Washington County Health System, a 300-bed hospital in Hagerstown.
The network plans to approach its members with new contracts this summer to find out whos in and whos out, says Bob Cirincione, M.D., an orthopedic surgeon who is TriStates chief medical officer. The biggest challenge is inherent with physicians: Physicians tend to be in independent small groups because it suits their personalities, Cirincione says. But, he adds, If there was not a groundswell of support of physicians in this community, we would not have achieved that FTC advisory letter.
Evidence of physician devotion to the stated quality and efficiency goals is one element that the FTC looks for when determining whether proposed integration is merely a dressed-up attempt to illegally gain bargaining leverage. In the opinion, the FTC credits the time and effort TriStates member physicians already have invested during the development of the program.
Christi Braun, an associate in the law firm Ober, Kaler, Grimes & Shriver, which handled the TriState request and those by the only two other organizations to get favorable opinions for such ventures, says there does seem to be an emerging model for clinical integration.
The governments basic view on the matter was set forth in guidance issued in 1996, but provider groups, including the American Medical Association and American Hospital Association, have sought further clarity and even leeway, arguing antitrust enforcement is stifling innovation. The FTC held a workshop last year aimed at learning what was happening in the evolving marketplace, and Braun says she believes the analysis in the TriState opinion reflects that.
For example, TriState intends to establish clinical practice guidelines, relying on shared health information technology to foster collaborative care management, and measure physician performance and quality improvement against a variety of benchmarks.
All referrals of patients enrolled in the plan would be in network. Physicians receiving poor report cards would be subject to peer counseling, discipline or potentially expulsion.
The guidelines and measures, though, are a work in progress, and the opinion makes a note of it.
The FTC was very clear they were looking for that and will look for the group to have those in place when the program is implemented, Braun says.
The hospital, the largest employer in the area, would be the networks largest source of enrollees as well as contribute the expertise of employed staff and build functions such as lab and pharmacy into the physicians integrative care.
We can truly move the mean on these quality scores, Field says. We think that has value, and well see. TriState will shop the program to other employers and commercial payers, and when contracts are signed the member physicians are obligated to be onboard with it.
Individual members are free to pursue their own contracts with payers that arent interested, but the otherwise unified approach, TriState submits, is necessary to accomplish a stable, cohesive and interdependent panel of physicians, and the FTC agrees.
Joint contracting on behalf of all TriState physicians will maximize each physicians opportunities to treat patients who are covered by the program which, in turn, should make them more committed to the programs success, the opinion stated.Submit a letter to the Modern Physician Reader Blog. Please include your name, title, company and hometown. Modern Physician reserves the right to edit all submissions.